Opening and Closing Statements at Arbitrations

By Attorney Paul R. Kelley

An “old school” lawyer asked me at the start of a personal injury arbitration if he could stand up while making his opening. After years of jury trials, he just wasn’t comfortable sitting down while presenting his case. You don’t have to stand up, but if you are plaintiff’s counsel and the arbitrator asks, “Do you wish to make an opening?” you must answer, “yes.” Why?

The first reason is that it is good business. Your client is present — show them some lawyering. It doesn’t have to be Cirque du Soleil, but a solid, “this is my client and she was hurt,” lets your client know right from the start that you are fighting for her. While the court room may be familiar to you, your client is most likely nervous. An opening gives your client a chance to ease into the hearing without being put on the spot right away.

An opening by plaintiff’s counsel, even if the arbitrator has read the brief, orients the arbitrator to this case and this claim. An opening says professionally, “Look at me, and pay attention to my client.”

Defense counsels often waive their openings believing that there is no need to tip off plaintiff to what you might ask them, and that any arguments are better saved for closing. The content of the closing need not be flamboyant. The “it is what it is” argument sends the message that, for whatever reason, the case simply needs a value put on it.

But when you really want to persuade, because the claim or defense ignites your passion, and there is justice to be determined, I have one piece of advice: Talk slowly. You can talk faster than I can listen. And you can certainly talk faster than I can write down a note on a crucial piece of evidence that you’re stating. It’s worth saying again, talk…more…slowly!

Now, you’ve gotten this advice before and you’re wondering how to do it. Talking slowly may not come naturally. You speak fast naturally, you’ve got nervous energy from the hearing, and how do you slow down? You need to practice. Practice your closing in front of a mirror, practice it in front of your spouse (or your kids or your dog), and even videotape yourself doing a closing. By watching yourself on videotape, you’ll realize just how fast you are talking, and you can practice slowing down.

A good closing argument in an arbitration hearing is conversational in tone. We are sitting together, not more than two or three feet apart. A courtroom allows for some dramatic flair. But over the years I’ve found that in an arbitration arguments that are conversational in tone are more effective than those that resemble speeches. The content may still be passionate, but persuade me like we’re chatting over a cup of coffee, not like I’m in the audience.